States Return to Considering Recidivism Risk in Sentencing, Law Professor Says

A growing number of states have begun imposing criminal sentences based in part on the offender’s likelihood of recidivism, according to a new paper co-written by University of Virginia law professor John Monahan.

Courts are increasingly using “risk assessment” formulas that rely on a number of factors – such as the defendant’s age, gender, criminal record and drug use – when calculating sentences, found Monahan and co-author Jennifer L. Skeem, a professor at the University of California, Irvine.

“There has been a genuinely remarkable turnaround in the use of risk assessment in criminal sentencing,” Monahan said. “In the past few years, many states have enacted risk assessment in sentencing. And many more states are in the process of enacting it.”

In “Risk Redux: The Resurgence of Risk Assessment in Criminal Sanctioning,” Monahan and Skeem write that risk assessment in criminal sentencing policies, a practice that lost popularity in the 1970s, has been returning partly due to the economic slowdown.

“It is simply not a sustainable option to put such a large portion of very limited tax dollars into maintaining bloated prison populations,” Monahan said. “Something has got to give. And the way that many states have changed their policies, or plan to change their policies, is to incorporate risk assessment so that people who are assessed as low risk of committing new crime spend less time in prison and people assessed as high risk of committing new crime spend more time in prison.”

The trend has also picked up following the U.S. Supreme Court’s 2011 decision in Brown v. Plata, which held that California’s prisons were so overcrowded that they violated the Eighth Amendment ban on cruel and unusual punishment. Under the ruling, California was ordered to reduce its prison population by 37,000 inmates.

“You have these two forces – both fiscal pressures, as well as court orders – and it unsurprisingly has resulted in more reliance on risk assessment at sentencing,” Monahan said.

Risk assessment policies begin by setting out a range of criminal punishment based on moral blameworthiness, and the range can be as narrow as four to five years or as broad as two to 10 years, for example. Where an individual fits within the range, or how much time he or she will spend in prison, is calculated by a risk-assessment formula.

“To say that a variable is a risk factor for recidivism is to say two things and only two things: the variable statistically correlates with recidivism, and that the variable occurs prior to the recidivism,” Monahan said. “You take a series of these risk factors, combine them empirically and come up with an estimate of the likelihood that a given individual will commit a new crime in the future.”

A number of risk factors are frequently found in risk assessment devices. Age is one common factor, as the younger the offender, the more statistically likely the individual is to commit new crime. Gender is another, as males are more likely to commit crime than females. Past crime is yet another, as the more crime an individual has committed in the past, the more likely the individual will commit more crime in the future.

Other risk factors can include an individual’s pro-criminal attitudes, such as if they believe that “theft is OK because, after all, insurance companies will reimburse the victims,” Monahan said. Substance abuse is another factor, as drug use may play a role in the commission of certain crimes, he said.

“Some factors are not changeable, like an individual’s birthdate or their gender, while other factors are changeable, such as substance abuse,” he said.

Risk-assessment policies can be quite controversial in several ways, Monahan said.

“There are many people who believe that criminal sentencing should be only about moral guilt and about what people have done in the past, rather than in part about assessments of what they’re likely to do in the future,” he said.

The use of gender as a risk factor can also be controversial, he said. Gender is irrelevant in terms of moral blameworthiness for past crime, but it is very relevant in terms of estimating the likelihood of future crime, he said.

Also, some risk assessment instruments consider unemployment to be a risk factor for future crime. “It’s one thing to take unemployment into account when there’s a very low unemployment rate in the country,” Monahan said. “It may be something else when many people, through no fault of their own, are unemployed.”

Risk-assessment policies were common in the United States at the start of the 20th century, Monahan said. Most states relied heavily on sentencing being indeterminate, with a low minimum and high maximum sentence. People were released from prison when they were judged to be rehabilitated.

In the 1970s, however, the crime rate started to rise and nearly every state threw out indeterminate sentencing in favor of what is often called “truth in sentencing.”

“Instead of forward-looking sentencing policies – how likely is the person to commit a new crime? – they emphasized backward-looking policies – how morally blameworthy is the individual for having committed a crime in the past?” Monahan said.

Virginia and Pennsylvania are two states that could be viewed as models for risk-assessment policies, Monahan said.

Virginia pioneered the modern use of risk-assessment policies, with the General Assembly instructing the state’s sentencing commission in 1994 to develop an empirically based risk-assessment instrument to divert 25 percent of the lowest-risk drug and property offenders who would otherwise be going to prison to community programs, which cost relatively little.

“That’s what the commission did,” Monahan said. “It relies on the type of crime the individual committed, age, gender, whether the individual is employed, whether the individual is married, the number of prior convictions – in order to identify which people can most safely be handled in the community rather than be sentenced to prison.”

Virginia also pioneered the use of risk assessment in identifying sex offenders with the highest risk of recidivism, to keep them in prison much longer than other sex offenders, Monahan said.

In Pennsylvania, the legislature implemented risk assessment and the state has published a series of careful empirical analyses of the best way to approach risk assessment in sentencing, Monahan said.

Monahan has studied risk assessment in various contexts for several decades. In 1981, he wrote the book “Clinical Risk Assessment in Violence” and in 2011 he explored risk factors for terrorism following the Fort Hood, Texas, shooting in the article “The Individual Risk Assessment of Terrorism.”

Monahan will present the article on risk assessment in early August at a conference of the National Association of Sentencing Commissions at the University of Minnesota Law School.